Alimony, which is also called spousal support or spousal maintenance, is payments that are made from one spouse to the other in order to provide them with financial support following a legal separation or divorce. Alimony payments are made in regular installments, usually monthly, and are made on a predetermined schedule.
Alimony is typically ordered when the court determines during a divorce or separation proceeding that one spouse should still financially support the other, even though they will no longer be married.
Alimony is intended to help provide for the basic needs of the former spouse, such as clothing, food, shelter, and transportation. The amount of alimony is determined by an examination of several factors that consider the ability of a spouse to pay the specified monthly amount to the other spouse.
Alimony may also be ordered so that a spouse may maintain the lifestyle they had during the marriage, or to allow the spouse to gain their financial independence. In addition, it is also provided to prevent an unfair economic effect of the divorce.
In most cases, one the receiving spouse is able to support themselves financially, alimony payments are typically terminated. If alimony payments were ordered to maintain a spouse’s standard of living during the marriage, the payments may continue until they marry again.
In South Dakota, the court may order alimony prior to the final divorce decree so that the financial needs of the receiving spouse may be met while the divorce is pending. A spouse may request alimony during a separation as well, without seeking a divorce.
This type of alimony is called separate maintenance. It may be requested on the same grounds as in a divorce. It is also separate from any child support payments that are made based on a child custody agreement.
What are the Types of Alimony?
Typically, alimony payments are made on a monthly basis. There are three types of alimony, including:
- Rehabilitative alimony;
- Permanent alimony; and
- Temporary alimony.
Rehabilitative alimony is intended to support the receiving spouse until they are financially stable. This type of support lasts for a set period of time. It typically terminates if the receiving spouse gains employment.
Permanent alimony is intended to last indefinitely. It means that the payments are made until there is a life changing event, such as the death or remarriage of one of the spouses.
Temporary alimony is intended to last a specific amount of time, which is typically set by the court. This type of alimony is paid when a couple separates but their divorce is not yet final.
The court will typically determine whether or not alimony should be paid as well as the payment amounts and when they should terminate. Some states default to the Uniform Marriage and Divorce Act (UMDA) to determine the amount of alimony payments.
Factors considered pursuant to the UMDA when calculating alimony include:
- Whether the spouses were legally married;
- The length of time that the marriage lasted;
- Each spouse’s contribution to the marital assets;
- The financial background of each spouse;
- The earning capacity of each of the spouses at the time of the divorce;
- Child custody issues, if any;
- Whether either spouse has cohabitated with a new partner or remarried; and
- The age and health of the spouses involved.
In most cases, moving in with another partner or marrying a new spouse will terminate alimony payments. In addition, significant changes in life circumstances, including loss of a job or moving, may reduce, alter, or terminate the amount of alimony payments.
If the alimony order or agreement does not include a termination date, then the payments are required to continue until the court rules that the payments are no longer needed. Since alimony is typically ordered according to the projected needs of the parties involved, these orders may often be modified or terminated, depending on the circumstances of the case.
How Do You Qualify for Alimony?
There are several factors a court examines to determine if an individual qualifies for alimony. These factors include:
- The length of the marriage;
- The spouses’ earning potential;
- The financial situation of the spouses once property is divided;
- The age and heath of the spouses;
- The station in life or social standing of the spouses; and
If rehabilitative or restitutional alimony is considered, the court will also consider the contributions of the paying spouse during the marriage, the paying spouse’s lost opportunity to advance vocational skills due to their marital responsibilities, and the length of the marriage after that spouse attained a professional degree.
How Much Alimony Can You Receive?
The laws in South Dakota do not place limits on the amount of alimony a spouse may receive. The Supreme Court of South Dakota, however, has struck down alimony awards where the recipient spouse failed to provide proof of their need for support.
As previously noted, there are many factors the court considers when calculating alimony. It may be difficult to predict what alimony amounts that a court might deem excessive. Therefore, if an individual is seeking alimony or believes they may be required to pay it, it is best to discuss their case with an attorney.
How Long Does Alimony Last?
The duration of alimony depends on what the court deems is just, which takes into consideration the circumstances and evidence presented by the parties. In some cases alimony has a short duration and, in others, it lasts until the death of the recipient spouse. The court has discretion to modify the terms of an alimony order if the circumstances of the parties change.
How Do You Petition for Alimony?
A spouse can petition for alimony at several different times during a separation or divorce proceeding. The request can be included in the initial filing of separation or divorce papers.
The request may also be made while the divorce is pending. It is important to remember that the court will not be aware that spousal support is needed unless it is requested. It is important to have the assistance of an attorney so that the right to alimony is not inadvertently waived.
How Do I Request Alimony or Modify an Alimony Order?
In order to receive alimony payments, an individual will be required to file a petition for alimony with the court that is handling the separation or divorce case. Many states include this request as part of the complaint for divorce.
Next, the spouse is required to be legally served with a notice for alimony. They are not required to consent to the alimony requested.
The court will then determine whether the alimony request should be granted. The alimony payments may be ordered in regular intervals, such as monthly, or in one lump sum.
If an individual is making alimony payments and needs to have their order modified, it is important that they continue making the payments so as not to be held in contempt of court. Not making the payments could be considered a violation of the court order.
A modification begins by petitioning the court for a modification of the order. This petition must include evidence that a modification is necessary based on a substantial change that has occurred since the order was made. This may include evidence the individual was laid off or retired.
Significant changes may also be that the receiving spouse now earns a significantly higher income and no longer relies on spousal support to be financially stable. Other examples may include the paying spouse becoming disabled.
Where Can You Find the Right Lawyer?
It is important to have the assistance of an experienced South Dakota family lawyer with any alimony issues you may have. Alimony can be a highly contentious issue in a divorce case.
It is important for you to protect your rights as well as your current financial situation during a divorce or separation. If you are considering filing for divorce and requesting alimony or have been served with divorce papers requesting alimony, it is essential to contact an attorney as soon as possible.